United States District Court, E.D. California
MEMORANDUM OPINION AND ORDER
M. COTA UNITED STATES MAGISTRATE JUDGE
who is proceeding with retained counsel, brings this action
for judicial review of a final decision of the Commissioner
of Social Security under 42 U.S.C. § 405(g). Pursuant to
the written consent of all parties (ECF Nos. 8 and 9), this
case is before the undersigned as the presiding judge for all
purposes, including entry of final judgment. See 28
U.S.C. § 636(c). Pending before the court are the
parties' cross motions for Summary Judgement. (ECF Nos.
21 and 22).
court reviews the Commissioner's final decision to
determine whether it is: (1) based on proper legal standards;
and (2) supported by substantial evidence in the record as a
whole. See Tackett v. Apfel, 180 F.3d 1094, 1097
(9th Cir. 1999). “Substantial evidence” is more
than a mere scintilla, but less than a preponderance. See
Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It
is “. . . such evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 402 (1971). The
record as a whole, including both the evidence that supports
and detracts from the Commissioner's conclusion, must be
considered and weighed. See Howard v. Heckler, 782
F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler,
760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm
the Commissioner's decision simply by isolating a
specific quantum of supporting evidence. See Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial
evidence supports the administrative findings, or if there is
conflicting evidence supporting a particular finding, the
finding of the Commissioner is conclusive. See Sprague v.
Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
Therefore, where the evidence is susceptible to more than one
rational interpretation, one of which supports the
Commissioner's decision, the decision must be affirmed,
see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002), and may be set aside only if an improper legal
standard was applied in weighing the evidence, see
Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
reasons discussed below, the Commissioner's final
decision is affirmed.
THE DISABILITY EVALUATION PROCESS
achieve uniformity of decisions, the Commissioner employs a
five-step sequential evaluation process to determine whether
a claimant is disabled. See 20 C.F.R. §§
404.1520 (a)-(f) and 416.920(a)-(f). The sequential
evaluation proceeds as follows:
Step 1 Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;
Step 2 If the claimant is not engaged in substantial gainful
activity, determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled and
the claim is denied;
Step 3 If the claimant has one or more severe impairments,
determination whether any such severe impairment meets or
medically equals an impairment listed in the regulations; if
the claimant has such an impairment, the claimant is presumed
disabled and the claim is granted;
Step 4 If the claimant's impairment is not listed in the
regulations, determination whether the impairment prevents
the claimant from performing past work in light of the
claimant's residual functional capacity; if not, the
claimant is presumed not disabled and the claim is denied;
Step 5 If the impairment prevents the claimant from
performing past work, determination whether, in light of the
claimant's residual functional capacity, the claimant can
engage in other types of substantial gainful work that exist
in the national economy; if so, the claimant is not disabled
and the claim is denied.
See 20 C.F.R. §§ 404.1520 (a)-(f) and
qualify for benefits, the claimant must establish the
inability to engage in substantial gainful activity due to a
medically determinable physical or mental impairment which
has lasted, or can be expected to last, a continuous period
of not less than 12 months. See 42 U.S.C. §
1382c(a)(3)(A). The claimant must provide evidence of a
physical or mental impairment of such severity the claimant
is unable to engage in previous work and cannot, considering
the claimant's age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy. See Quang Van Han v.
Bower, 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant
has the initial burden of proving the existence of a
disability. See Terry v. Sullivan, 903 F.2d 1273,
1275 (9th Cir. 1990).
claimant establishes a prima facie case by showing that a
physical or mental impairment prevents the claimant from
engaging in previous work. See Gallant v. Heckler,
753 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§
404.1520(f) and 416.920(f). If the claimant establishes a
prima facie case, the burden then shifts to the Commissioner
to show the claimant can perform other work existing in the
national economy. See Burkhart v. Bowen, 856 F.2d
1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785
F.2d 1423, 1425 (9th Cir. 1986); Hammock v. Bowen,
867 F.2d 1209, 1212-1213 (9th Cir. 1989).
THE COMMISSIONER'S FINDINGS
applied for social security benefits on July 8, 2014.
See AR 17. In the application, plaintiff claims
disability began on April 1, 2014. See id. In his
opening brief, plaintiff claims he is disabled due to
limitations caused by type II diabetes with diabetic
polyneuropathy, osteoarthritis involving both ankles and
feet, moderate degenerative joint disease in his bilateral
toes, and obesity. Plaintiff's claim was initially
denied. Following denial of reconsideration, plaintiff
requested an administrative hearing, which was held on July
11, 2016, before Administrative Law Judge (ALJ) Curtis Renoe.
In a September 7, 2016, decision, the ALJ concluded plaintiff
is not disabled based on the following relevant findings:
1. The claimant has the following severe impairment(s):
diabetes, hypertension, degenerative joint disease, hand/feet
neuropathy, obesity, and ankle edema;
2. The claimant does not have an impairment or combination of
impairments that meets or medically equals an impairment
listed in the regulations;
3. The claimant has the following residual functional
capacity: medium work, except he can lift and carry 50 pounds
occasionally and 25 pounds frequently; he can sit 6 hours in
an 8-hour workday and alternate to standing for 5 minutes,
every 30 minutes of sitting; he can stand up to 6 hours in an
8-hour workday and alternate to sitting for 5 minutes, after
every 30 minutes of standing; he can walk up to 6 hours in an
8-hour workday and alternate to sitting for 5 minutes, after
every 30 minutes of walking; he can push and pull as much as
he can lift and carry; he can use foot controls with his
right foot and left foot occasionally. He can use hand
controls with his bilateral hands frequently; he can handle,
finger, and feel with his bilateral hands frequently; he can
climb ramps and stairs occasionally; he can climb ladders,
ropes, or scaffolds occasionally; he can crawl occasionally
he can never work with unprotected heights or moving
mechanical parts; and he can never work in extreme cold or
4. Considering the claimant's age, education, work
experience, residual functional capacity, and vocational
expert testimony, claimant can perform his past relevant work
as a kitchen helper, childcare provider, construction
painter, counselor aid, or maintenance worker.
See id. at 19-26.
the Appeals Council declined review on October 31, 2017, this
argues: (1) the ALJ failed to properly evaluate the medical
opinions of Nurse Practitioner Shirikian; and (2) the ALJ
failed to properly evaluate plaintiff's statements and
ALJ must consider all medical opinion evidence.”
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by
not explicitly rejecting a medical opinion. See Garrison
v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ
also errs by failing to set forth sufficient reasons for
crediting one medical opinion over another. See id.
the regulations, only “licensed physicians and certain
qualified specialists” are considered acceptable
medical sources. 20 C.F.R. § 404.1513(a); see also
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
Where the acceptable medical source opinion is based on an
examination, the “. . . physician's opinion alone
constitutes substantial evidence, because it rests on his own
independent examination of the claimant.”
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
2001). The opinions of non-examining professionals may also
constitute substantial evidence when the opinions are
consistent with independent clinical findings or other
evidence in the record. See Thomas v. Barnhart, 278
F.3d 947, 957 (9th Cir. 2002). Social workers are not
considered an acceptable medical source. See Turner v.
Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1223-24
(9th Cir. 2010). Nurse practitioners and physician assistants
also are not acceptable medical sources. See Dale v.
Colvin, 823 F.3d 941, 943 (9th Cir. 2016). Opinions from
“other sources” such as nurse practitioners,
physician assistants, and social workers may be discounted
provided the ALJ provides reasons germane to each source for
doing so. See Popa v. Berryhill, 872 F.3d 901, 906
(9th Cir. 2017), but see Revels v. Berryhill, 874
F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. §
404.1527(f)(1) and describing circumstance when opinions from
“other sources” may be considered acceptable
weight given to medical opinions depends in part on whether
they are proffered by treating, examining, or non-examining
professionals. See Lester v. Chater, 81 F.3d 821,
830-31 (9th Cir. 1995). Ordinarily, more weight is given to
the opinion of a treating professional, who has a greater
opportunity to know and observe the patient as an individual,
than the opinion of a non-treating professional. See
id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th
Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th
Cir. 1987). ...